Nye v. State

Liss, J., delivered the opinion of the Court. Appellant, Stephen Donald Nye, was indicted on November 27, 1979 for possession with intent to distribute controlled dangerous substances (count 1); possession of controlled dangerous substances (count 2); and possession of controlled dangerous paraphernalia (count 3). On December 14, 1979, appellant’s counsel entered his appearance and immediately moved to suppress all evidence derived from intercepted telephonic communications. A hearing on the motion to suppress was held on March 16, 1980, and the motion was subsequently denied.

A renewed motion to suppress was then filed on May 13, 1980, based upon the newly decided case of Baldwin v. State, 45 Md. App. 328 , 413 A.2d 246 (1980),* 1 which was again denied. Appellant was tried before a jury on May 16, 1980, and convicted of counts one and three. Sentence was imposed on each count and defendant appeals. He raises the following issues to be determined by this Court: I. Did the trial judge err in refusing to suppress all evidence relating to the interception of ¹¹³ telephone conversations since the order for a wiretap did not comply with Maryland Code (1974, 1980 Repl.

Vol.), Courts and Judicial Proceedings Article, Section 10-408 (f)?

II

Did the trial court err in refusing to suppress evidence obtained and derived from intercepted telephone conversations because the affidavit failed to show probable cause that "higher ups”, the objects of the investigation, existed?

III

Did the trial judge err in determining that the motions to suppress evidence relating to evidence obtained as a result of ex parte orders to intercept telephonic communications could not be considered since they violated Rule 736 of the Maryland Rules of Procedure?

IV

Did the trial judge err in permitting the use of copies of the application, affidavit and order for interception of telephonic communications at the hearing on this motion to suppress when the originals were allegedly lost and the seals on the applications, affidavits and orders were broken? V. Was it reversible error not to suppress any evidence derived from intercepted telephonic conversations because of the State’s failure to comply with Rule 741’s automatic discovery?

VI

Did the trial judge err in refusing to suppress any evidence obtained as^a result of the search of the appellant and his residence and effects because of the invalidity of the search warrant?

VII

Did the trial judge err in refusing to suppress evidence obtained through intercepted telephonic communications since it was not shown that "higher-ups” existed and that other procedures would fail to produce desired information? ¹¹⁴ VIII. Was the appellant denied due process of law because the lower court refused to grant him a new hearing on his motion to suppress after documents had been found by the court? At the hearing on the motion to suppress on March 6, 1980, it was determined that two separate wiretap orders were involved; the first, dated August 2, 1979, authorized interception of communications from the phone of Linda Woods; the second, dated August 27, 1979, authorized a wiretap on a phone listed in the name of Theodore Stevens. During the course of the hearing it was discovered that the applications and supporting affidavits for the wiretap orders had been contained in sealed envelopes.

One of the envelopes had been opened prior to the hearing without an order of court, presumably by the state’s attorney. Because of the confusion, the trial judge indicated that there would be a recess to another day; however, on April 9, 1980, the trial judge filed a memorandum opinion which read as follows: In each of the above cases the Defendant has filed a Motion to Suppress Evidence obtained by the interception of telephonic communications. At the hearing some confusion existed regarding the originals of two separate applications for wiretaps. Two sealed envelopes were produced from the Clerk’s Office but they yielded only an original application with supporting documents and copies of the others.

After the hearing the Court located a third sealed envelope in the Clerk’s vault which contained the original documents associated with the second wiretap. All documents have been reviewed by the Court and have been resealed and returned to the Clerk’s vault. The Court has reviewed both wiretap applications and the documents in support thereof and finds that they satisfy both the Maryland and Federal Statutes dealing with wiretaps. And the Court further finds that they contain within them ¹¹⁵ sufficient probable cause for their issuance.

Therefore, all Motions to Suppress will be denied. The renewed motion to suppress stated thirteen reasons for the granting of the motion, some of which had been included in the original motion. The new reasons were stated as follows: the allusion to "higher-ups” in the affidavit; an absence of a mandate in the order for regular reports specifying progress toward the goal of the interception; an absence of a showing of the need for a continuance of the interception; and the impropriety of issuing a search warrant based on the affidavit utilizing information which appellant contended was obtained by illegal wiretaps. The trial judge ruled that the renewed motion to suppress was untimely filed and denied the motion to suppress.

I. and III. Appellant contends initially that the trial judge erred in refusing to suppress all of the evidence relating to the interception of telephone conversations in this case because of the order for a wiretap did not comply with Section 10-408 (f) of the Courts and Judicial Proceedings Article. That section mandates that: Whenever an order authorizing interception is entered pursuant to this subtitle, the order shall require reports to be made to the judge who issued the order showing what progress has been made toward achievement of the authorized objective and the need for continued interception. The reports shall be made at the intervals the judge requires.

In addition, appellant urges that the trial court erred in holding that appellant’s second suppression hearing was not timely filed pursuant to Maryland Rule 736. That rule provides in pertinent part: ¹¹⁶ Rule 736. Motions Before Trial. a. Mandatory Motions A motion asserting one of the following matters shall be filed in conformity with this Rule.

Any such matter not raised in accordance with this Rule is waived, unless the court, for good cause shown, orders otherwise: 3. An unlawful search, seizure, interception of wire or oral communication, or pretrial identification; b. Time for Filing Mandatory Motions. A motion filed pursuant to section a of this Rule shall be filed within 30 days after the earlier of the appearance of counsel or the first appearance of the defendant before the court pursuant to Rule 723 (Appearance — Provision for or W aiver of Counsel), except when discovery is furnished on an issue which is the subject of the motion, then the motion may be filed within five days after the discovery is furnished.

It should be noted that appellant apparently concedes that Rule 736, which was adopted after Section 10-408 (i) (2) of the Courts and Judicial Proceedings Article, takes precedence over that section. See Smith v. State, 5 Md. App. 633 , 248 A.2d 913 (1968). Appellant elects to offer two alternative arguments to sustain his contention. He urges that 18 U.S.C. Section 2518 (10) rather than Rule 736 is controlling and that under that section any suppression motion made before trial, hearing or proceeding is timely.

Alternatively, he argues that if Rule 736 is controlling, there was "good cause shown” to justify the filing of his second suppression motion so that the new grounds argued therein should have been heard and considered by the trial court. The assertion that 18 U.S.C. Section 2518 is controlling over the case is raised for the first time on appeal. It was ¹¹⁷ never argued or considered below. It is therefore not preserved on appeal.

See Rule 1085; Von Lusch v. State, 279 Md. 255 , 368 A.2d 468 (1977). In any case, the federal wiretap statute is controlling only in those instances where it is more restrictive than the Maryland statute. See State v. Siegel, 266 Md. 256 , 292 A.2d 86 (1976). It is not disputed that the Maryland statute is to a significant degree more restrictive than its federal counterpart.

See generally Gilbert, A Diagnosis, Dissection and Prognosis of Maryland’s New Wiretap and Electronic Surveillance Law, 8 U. Balt. L. Rev. 183 (1979). We hold that Rule 736 rather than 18 U.S.C. Section 2518 (10) is controlling in this case. Appellant next asserts that this Court’s decision in Baldwin v. State, supra, filed April 15, 1980, presented him with new arguments which were not available to him on December 14, 1979, the date he filed his initial motion to suppress.

He contends that the Baldwin case, supra, (holding that there had not been sufficient compliance with Section 10-408 (f)) was sufficient "good cause” to require a hearing on his second motion to suppress. We do not agree. The requirements of Section 10-408 (f) predated Baldwin and appellant failed to allege any facts which excused him from raising the issue under Rule 736 and the failure to do so amounted to a waiver of this argument. See Kohr v. State, 40 Md. App. 92 , 388 A.2d 1242 (1978).

Assuming, arguendo, that the delay in raising the issue may be considered as being for good cause our own independent review of the record convinces us that the ex parte orders issued in this case complied with Section 10-408 (f). Two ex parte orders authorizing wiretaps were issued, the first on August 2, 1979 and the second on August 27, 1979. Both orders provided as follows: Ordered that the State’s Attorney for Washington County, or his designee shall advise this Court of the progress of the interception process, and the current status of the investigation in writing on each Monday throughout the course of the interception process, and shall reasonably record ¹¹⁸ the date, time, and general content of such progress reports. Appellant argues that the above quoted requirement does not comply with Section 10-408 (f) in that it does not require that the reports show "the progress made toward achieving the authorized objective of the orders.” Our review of the language of the orders convinces us that, as distinguished from Baldwin, supra, the orders did require the police to make regular, timely reports at regular specified intervals.

We conclude that a commonsense review of the language of the orders suggests that the police were being directed to apprise the issuing judge of the progress of the interception; i.e., the progress toward the authorized objective. This conclusion is supported, we believe, by the opinion of the Court of Appeals in State v. Baldwin, 289 Md. 635 , 426 A.2d 916, 921 (1981), where Chief Judge Murphy stated As earlier